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Métis and Non-Status Indians no longer in a “jurisdictional wasteland”, SCC confirms

On April 14, 2016, the Supreme Court of Canada (SCC) released its decision in Daniels v. Canada (Indian Affairs and Northern Development), 2016 SCC 12(Daniels), confirming that both Métis and non-status Indians (referred to herein as MNSI) are “Indians” within the meaning of section 91(24) of the Constitution Act, 1867 and therefore under the jurisdiction of the federal government of Canada.

While Daniels brings clarity to a longstanding debate of whether MNSI are within federal or provincial jurisdiction, it does not in and of itself create any immediately identifiable legal obligations on the federal government to legislate in respect of MNSI. However, the practical effect of the decision is to identify who MNSI may now turn to for policy redress, and it may generate expectations for Parliament to legislate in areas from which MNSI have been historically excluded.

Background

The Plaintiffs who commenced the trial action at the Federal Court of Canada (FCC) were three individuals who identified as either Métis or non-status Indians, and the Congress of Aboriginal Peoples, which represents the interests of MNSI in Canada. They sought three declarations:

that MNSI are “Indians within the meaning of sub-section 91(24) of the Constitution Act,1867 (s. 91(24)), which grants the federal government exclusive authority to legislate in relation to “Indians and Lands Reserved for the Indians”;

that the Queen (in right of Canada) owes a fiduciary duty to the MNSI as Aboriginal peoples; and

that the MNSI have a right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, representing all of their rights, interests and needs as Aboriginal peoples.

The Plaintiffs sought declaratory relief rather than specific relief on the basis of factual claims. They asserted that due to the federal government’s refusal to recognize MNSI as "Indians" under s. 91(24), MNSI had "suffered deprivations and discrimination in the nature of lack of access to health care, education and other benefits available to status Indians; lack of access to material and cultural benefits; being subjected to criminal prosecutions for exercising Aboriginal rights to hunt, trap, fish and gather on public lands; and being deprived of federal government negotiations on matters of Aboriginal rights and agreements."

MNSI in Canada

The Métis peoples of Canada, along with Indians and Inuit, comprise the "Aboriginal peoples of Canada" whose rights are recognized and affirmed under section 35 of the Constitution Act, 1982 (s. 35). With the exception of general guidance from the SCC, there is no definitive legal definition for "Métis," and interpretations vary. In some contexts, the term "Métis" has been used to describe all individuals of mixed Aboriginal and non-Aboriginal ancestry. It has also been used in a more restricted context to describe individuals who trace their ancestry to the historic "Métis Nation" emanating primarily from Manitoba. In another context, the changing definition of "Indian" under the federal Indian Act, R.S.C. 1985, c. I-5 (Indian Act) has meant that in some cases, individuals who once identified as "Indian" lost their registration as "Indian," and have otherwise been considered "Métis."

Non-status Indians generally are viewed as having two distinct qualities: (1) they lack status under the Indian Act; and (2) they have Indian heritage. They have an ancestral connection, not necessarily genetic, to those considered "Indians" either in law or fact, or any person who self-identifies as an Indian and is accepted as such by the Indian community, a locally organized community, branch or council of an Indian association or organization with which that person wishes to be associated.

Daniels through the Courts

Federal Court[1]

In its decision released in January 2013, the FCC granted the first declaration, finding that MNSI are “Indians” within the meaning of s. 91(24), and under federal jurisdiction. It based this conclusion on historical evidence of the purposes of s. 91(24) to exercise federal control over “native peoples”, a broad and purposive interpretation of the word “Indians” in the Constitution, and a finding that the federal government had historically exercised jurisdiction over MNSI and treated them as “Indians”, except when it was inconvenient for policy and financial reasons.

The FCC declined to make the second and third declarations. It acknowledged that, as a matter of law, a general fiduciary relationship between the federal government and MNSI exists, but the Plaintiffs did not raise evidence of a specific interest for which a fiduciary duty might be found. Similarly, the case lacked specific facts that would give rise to a requirement for consultation or negotiation. Therefore, the FCC held that the declarations lacked practical utility and it would not be appropriate to grant either declaration.

Federal Court of Appeal[2]

On appeal, the Federal Court of Appeal (FCA) agreed that Métis are included under s. 91(24), but held that the Métis criteria set out in the SCC’s 2003 R. v. Powley[3]decision should apply for the purposes of determining who is a Métis person within s. 91(24). Powleyset out three indicia of Métis identity for the purpose of claiming constitutionally protected Métis rights such as hunting, under s. 35: self-identification, ancestral connection and community acceptance.

The FCA also deleted the reference to non-status Indians in the first declaration. The FCA acknowledged that non-status Indians were, broadly speaking, Indians without status under the Indian Act, but that Parliament has the power under s. 91(24) to grant status to such persons. Therefore, non-status Indians are necessarily “Indians” within the meaning of section 91(24). However, the FCA held that such a declaration was redundant, lacked practical utility, and would not settle any issue between non-status Indians and the federal government.

The FCA agreed with the FCC that the second and third declarations should not be granted.

SCC

The SCC restored the FCC’s decision on the first declaration, favouring the broad interpretation given to the term, “Indians” under s. 91(24) and declaring that both Métis and non-status Indians are “Indians” under s. 91(24). The SCC held that there was practical utility in acknowledging both Métis and non-status Indians, because it would settle the “jurisdictional tug-of-war” between the federal and provincial governments over both groups, and the inclusion of non-status Indians in the declaration would avoid future uncertainty.

The SCC made similar findings as the FCC regarding the historical purpose of s. 91(24) and authority exercised by the federal government over Métis, and pointed to jurisprudence that suggested Métis should be included in s. 91(24) despite their cultural distinctiveness. The SCC also noted that it would be constitutionally anomalous if Métis were the only Aboriginal group that was recognized as Aboriginal peoples under s. 35, but not under s. 91(24).

The SCC held that there was no need in this case to define who are Métis or non-status Indians under s. 91(24). Rather, it stated that determining who are “Indians” under s. 91(24) is a fact-driven exercise to be decided on a case-by-case basis in the future. More particularly, the SCC saw no principled reason to exclude certain Métis from federal jurisdiction on basis of the Powley criteria. It noted the distinction that the Powley criteria were specifically intended for determining who is entitled to claim historic, community-held Métis rights under s. 35, whereas s. 91(24) has a different constitutional purpose and is about Canada’s relationship with Aboriginal peoples. In particular, it saw no reason to apply a community acceptance test for the purposes of defining who is Métis under s. 91(24).

The SCC held that the lower courts did not err in refusing to make the second and third declarations, pointing to previous jurisprudence that had already established these general duties owed by the Crown to MNSI.

Discussion

Effect of federal jurisdiction over MNSI

Daniels removes past uncertainty regarding whether MNSI are under the jurisdiction of the federal or provincial governments and confirms that Parliament has authority to legislate in respect of MNSI peoples in their capacity as MNSI. Prior to Daniels, both heads of government could maintain that they did not have constitutional responsibility over MNSI, thereby avoiding financial or other obligations. The SCC stated that this situation had left MNSI in a “jurisdictional wasteland” and granting the first declaration would end the “jurisdictional tug-of-war” in which MNSI lacked clarity on where to seek policy redress. [4]

Despite this jurisdictional certainty, the SCC expressly stated that the finding that MNSI are “Indians” under s. 91(24) does not create a duty for the federal government to legislate.[5] In our view, the recognition of MNSI within s. 91(24) does not in and of itself create any new rights for either group, or any immediate or identifiable legal obligations or responsibilities for Parliament to create laws to provide specific benefits to MNSI peoples. Rather, if any new rights are to be created for MNSI, this will be the result of Parliament’s decision to exercise its legislative jurisdiction over MNSI, or if courts find, in future litigation, that the federal government must legislate in areas where MNSI have been unconstitutionally deprived of specific rights owed to them.[6]

Although the federal government is not, as a result of Daniels, under any specific legal obligations to now legislate in respect of MNSI, and the SCCdoes not provide any guidance regarding how the federal government might choose to exercise its jurisdiction over MNSI,Daniels will undoubtedly create an expectation for the federal government to take action, thus adding to its ambitious agenda to pursue a new relationship and path to reconciliation with Aboriginal peoples in Canada. Daniels could create expectations for the federal government to act in areas such as post-secondary tuition, on-reserve social programs, certain additional health coverage and services, and tax exemptions, particularly given the historical disparity in funding and programs provided to other "Indians" versus MNSI.

S. 35 and the Duty to Consult

In declining to grant the third declaration (that MNSI have a constitutional right to be consulted and negotiated with, in good faith, by the federal government on a collective basis through representatives of their choice, respecting all their rights, interests and needs as Aboriginal peoples), the SCC stated that in past decisions (including Haida, Tsilhqot’in andPowley), it has already recognized “a context-specific duty to negotiate when Aboriginal rights are engaged.” Therefore, the SCC stated that as it would be a restatement of existing law, the third declaration would lack practical utility.[7]

The SCC’s use of the term, “negotiate” appears to be used interchangeably with “consult”, since none of Haida, Tsilhqot’in, Powley or other SCC decisions impose a distinct “duty to negotiate” in the context of consultation with Aboriginal groups. Since Haida, the SCC has consistently held that the Crown owes a duty to consult, and where appropriate, accommodate Aboriginal peoples when their rights may be affected by a Crown action or decision. Such duties do not impose a requirement on the Crown to reach agreement with Aboriginal groups, nor do they grant a veto to Aboriginal groups. Further, accommodation at law generally involves taking measures to avoid, minimize or mitigation impacts on Aboriginal rights or interests. It does not require the Crown to negotiate any terms upon which its decision or action will proceed.

Courts have separately recognized that the government has a duty to negotiate in good faith in other contexts, such as in the negotiation of a treaty or the resolution of land claims. This is consistent with its obligation to uphold the honour of the Crown. In Tsilhqot’in, for example, the SCC’s only comments on the government’s duty to negotiate in good faith are in reference to the resolution of land claims. Neither Tsilhqot’in or other case law impose a distinct "duty to negotiate” in the context of consultation and accommodation.[8]

The SCC in Daniels does not distinguish between the different contexts in which a duty to “consult” or “negotiate” may arise, but it also makes no suggestion that the existing law of consultation has changed. Further, the SCC expressly declined to make the third declaration. In our view, the use of the term “negotiate” is not appropriately applied in the context of consultation, and it could be wrongly interpreted as imposing additional duties or obligations on the Crown than what the law of the duty to consult, and where appropriate, accommodate, presently requires.

Semantics aside, in our view Daniels does not create any new legal rights for MNSI in terms of benefits or their rights in respect of the Crown’s duty to consult with MNSI. The Aboriginal rights of Métis peoples of Canada (and in our view, also non-status Indians) are constitutionally protected under s. 35(1), which recognizes and affirms existing Aboriginal and treaty rights, and s. 35(2) expressly defines "Aboriginal Peoples of Canada" under s. 35(1) as including the Indian, Inuit and Métis peoples of Canada. In our view, MNSI are entitled to the rights and protections of s. 35, including being owed a duty to consult whenever their Aboriginal rights or interests may be adversely affected in respect of government action.

However, as noted above, a potential effect of Daniels could be to increase expectations of MNSI peoples to derive benefits or greater accommodation from the Crown or from resource project proponents. While such expectations would not reflect any new legal obligations of government towards MNSI, it could increase practical risks of project implementation in certain circumstances.

Determining who are MNSI under s. 91(24)

Daniels is not a full answer to the issues regarding MNSI in Canada, and particularly in defining and determining who is considered Métis or non-status Indian. As the SCC noted, determining who is legally a Métis and who is non-status Indian for the purposes of s. 91(24) is a fact-driven exercise to be determined on a case-by-case basis in the future.

Similarly, uncertainty regarding the definitions of MNSI will continue to pose practical issues for the federal and provincial Crown and for project proponents in identifying the appropriate Aboriginal groups, and their representative organizations, with whom to consult under s. 35.

Effect of Daniels on provincial legislation

The SCC noted that its confirmation of federal jurisdiction over MNSI does not mean that all provincial legislation regarding MNSI is ultra vires, or invalid. Courts should favour the ordinary operation of statutes enacted by both levels of government. Further, the SCC cited previous decisions confirming that federal authority under s. 91(24) does not bar valid provincial schemes that do not impair the core of the federal “Indian” power.[9]

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